FAQ: Determining Fault in a Personal Injury

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 What is a Personal Injury Claim?

In a personal injury claim, a plaintiff alleges that they have sustained an injury or injuries as a result of an act or a failure to act by the defendant. The injuries may be physical, mental, or both in nature.

In these types of claims, the court or a jury may award a plaintiff money damages for personal injury. An example of a physical injury in a personal injury claim may include, but is not limited to injuries to:

  • Organs;
  • Limbs; or
  • Other parts of the anatomy.

Examples of a mental health injury may include emotional pain and anguish which is incurred by the accident or injury. An injury is not required to manifest itself instantly but may develop as time passes.

Personal injuries can also occur intentionally. For example, if a defendant deliberately causes an injury to the plaintiff or they intend to commit an act which results in an injury.

Personal injuries may also occur unintentionally. If an unintentional injury is the result of the defendant’s negligence, a plaintiff may have the basis for a lawsuit based on their negligent behavior.

Examples of negligence cases include, but are not limited to:

What Are the Elements of Personal Injury?

A personal injury attorney assists individuals who have suffered injuries with obtaining compensation for their injuries from the individual who caused the injuries. Personal injury law, however, is much more complicated than that.

It is important to note that personal injury laws do not address criminal offenses. When an individual files a personal injury lawsuit, it is a civil lawsuit filed in a civil court.

Criminal actions or charges may be filed separately if the incident which resulted in the personal injury was of a criminal nature. Personal injury actions fall into one of three categories:

Each of these categories of personal injury laws has its own set of elements that are required to be proven in order for the injured party to prevail in their personal injury case.

What Does Negligence Mean in Personal Injury Law?

Negligence is a legal theory which describes a level of carelessness by an individual which causes injury to another individual or to their property. Negligence is in the unintentional tort category, which means that the negligent party did not intend to cause injury to the plaintiff.

Examples of negligence claims may include, but are not limited to:

  • Automobile accidents;
  • A landlord failing to maintain the property of a tenant; or
  • A city failing to fix a hazardous sidewalk.

There are four basic elements which a plaintiff, or injured party, in a personal injury lawsuit is required to prove in order to prevail, including:

  • Duty;
  • Breach;
  • Causation; and
  • Damages.

The plaintiff must prove the defendant had a duty of care to the plaintiff. In automobile accidents, this duty is easy to show. All drivers have a duty of care to other drivers as well as to pedestrians.

The plaintiff must prove that the defendant breached their duty of care or failed to perform their duty of care. This may be accomplished by applying the reasonable person standard which compares how a reasonable person would behave in the same or similar circumstances. Another way to prove a breach may be if a defendant violates a law, such as running a red light.

The more difficult element to prove is causation. A plaintiff must show that the breach of duty by the defendant was the cause of their injuries.

Simply because a defendant breached a duty is not enough. The breach must also be the cause of the plaintiff’s injuries. The two steps to prove causation include:

  • The cause-in-fact, meaning, but for the defendant’s action, the plaintiff would not have been injured; and
  • The proximate cause, meaning that the injuries are close in time to the accident.

The plaintiff must provide an actual monetary figure representing their expenses, or calculable damages, which can be calculated by:

  • Medical bills;
  • Costs of replacing or repairing property;
  • Loss of wages due to the injury; and
  • Future economic loss resulting from a permanent disability.

How is Fault Determined in a Personal Injury Suit?

Typically, fault is tied to the causation element of personal injury. The plaintiff is required to prove that the defendant caused their injury in order for the court to find the defendant is at fault.

The plaintiff may use several types of evidence to prove this element, including:

  • Eyewitness testimony;
  • Video surveillance;
  • Medical documentation;
  • Statements of the defendant; and
  • Expert testimony.

An expert witness may include an accident reconstructionist, a doctor or any specialist who may be able to explain how the defendant’s actions caused the plaintiff’s injuries. In some cases, causation may be difficult to show, such as in medical malpractice or defective products cases.

This is because a product may pass through numerous hands and it may be difficult to discover which party is at fault. In a medical malpractice case, it may be difficult to show that a doctor behaved negligently even if they were the cause of the injury because medicine is a practice and does not produce exact results.

In these types of cases, it is important to keep a record of the events surrounding an injury, including:

  • A log of events;
  • Communications; and
  • Records.

This may include receipts for expenses related to the injury as well as correspondence between parties and insurance companies. These records may assist in proving a plaintiff’s case at a later time.

Can I Still be Compensated for My Injuries if I was Somewhat at Fault?

Most states have a comparative negligence standard when determining fault. There are a handful of states that follow the contributory negligence system.

If an individual is somewhat at fault but the defendant was mostly at fault, the majority of courts will take this into consideration when determining the amount the defendant will be required to pay. In a contributory negligence state, however, a plaintiff may be prohibited from recovering if they were responsible in some way.

Another area of concern in personal injury cases is assumption of the risk. If the plaintiff assumed the risk of injury, they may be prevented from recovering for their injury.

If I Had a Condition that Made My Injuries Worse, Can I Still Be Compensated?

If a plaintiff had a pre-existing condition which made their injuries worse, their compensation will depend on the nature of the new injury caused by the defendant. Many times, a court will deduct certain expenses if they are related to the pre-existing condition instead of the actions of the defendant.

However, if a plaintiff would not have incurred those expenses but for the actions of the defendant, they may be able to recover.

Do I Need a Personal Injury Lawyer?

Personal injury claims may be complex and challenging to prove. Because of this, it is a good idea to consult with a personal injury lawyer who can assist in reviewing the merit of your claim, gathering evidence, and determining whether an expert witness will be necessary.

Your lawyer will assist you throughout the case and represent you in court. It is important to gather all documents and records you have related to your injury so your lawyer can determine if you have a claim.

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